[22]*22opinioít.
Murdock:
A correct decision of this case depends upon a proper interpretation of a number of different provisions of the Revenue Act of 1921. For convenience the pertinent parts of this Act have been set forth by footnote in the order in which they appear in the Act.1
Obviously, Congress intended section 237 to apply only to the case of a foreign corporation which received taxable net income from [23]*23sources within the United States but which had not engaged in trade or business within the United States and had no office or place of business therein, and not to foreign corporations which had taxable net income from sources within the United States and were engaged in trade or business therein or had an office or place of business therein. The petitioner contends that it neither engaged in trade or business within the United States nor had any office or place of business therein. We disagree with this contention. By the agreement of November 27, 1917, it was a member of a so-called “ syndicate ” which had an office and place of business in this country and which engaged in a trade or business in this country. No contention is made that this “ syndicate ” was a separate independent taxable or legal entity. According to the intent stated in the agreement, the petitioner and Edward and John Burke, Ltd., were to engage in a joint venture for the purpose of carrying on the business of manufacturing ginger ale and some other products in the United States. Whether it was a joint venture or a partnership, the business of the “ syndicate ” was as much a business of the petitioner as it was a [24]*24business of Edward and John Burke, Ltd., and the place of business of the “ syndicate ” was likewise a place of business of the petitioner. The petitioner was not receiving interest, rent, salary, wages, premiums, annuities, compensations, remunerations, emoluments or other fixed or determinable annual or periodical gains, profits and income over which Edward and John Burke, Ltd., had control, receipt, custody, disposal or payment within the meaning of section 221, but, on the contrary, was itself engaged in business in the United States, was using and protecting its secret formulae, dividing the profits of that business, retaining some control over and such rights in the management of that business as it desired, retaining also an undivided one-half interest in certain property used in and contributing to the efficient conduct of the business, and was entitled to its share of the profits of the business as such, not as something to be received from or through Edward and John Burke, Ltd. The mere fact that it adopted the particular form of conducting this business provided in the agreement, whereby its powers of control and administration were somewhat restricted, does not change the fact that it was engaged in the business. In the eye of the law at least it was present here as a party to the conduct of the business of the “ syndicate ” through which it established a place of business within the United States for doing a part of its business. Cf. People v. Roberts, 152 N. Y. 59; 46 N. E. 161. See also Flint v. Stone Tracy Co., 220 [25]*25U. S. 107, at page 171, where the court defined business and stated that corporations organized for the purpose of doing business and actually engaged in such activities as leasing property, making investments of profits, dividing profits' and in some cases investing the surplus are engaged in business.
Therefore, section 237 of the Revenue Act of 1921 does not apply to this petitioner and the Commissioner did not err in so holding or in holding that the petitioner was liable for income and profits taxes in accordance with other provisions of the Revenue Act of 1921. This we believe is a complete decision of the issue raised by the petitioner’s first allegation of error, which does not require us to go into the method used by the Commissioner in determining the deficiencies which he has determined.
The next issue is as to whether or not the Commissioner erred in assessing the penalties upon the petitioner for failure to file a return for each of the two taxable periods here involved. Ro question is raised as to the amount of the penalties, if any penalties were proper. The penalties in this case were apparently imposed under section 1311 for failure to file a return. The petitioner contends that since the two returns above mentioned were filed by Edward and John Burke, Ltd., as withholding agent in accordance with section 237, no penalty can be assessed against it for failure to file returns. It argues that it was not required at its peril to decide upon the exact form of its return. The courts and this [26]*26Board have heretofore held in certain instances that a taxpayer who did not file a return on the correct form or whose return was not correct in every detail, had not necessarily failed to file a sufficient return, but in every case of this kind that has been called to our attention, there was a return filed which gave the Commissioner substantial information as to the specific items of the taxpayer’s gross income and the deductions and credits to which it was entitled. Cf. National Refining Co. of Ohio, 1 B. T. A. 236; National Refining Co. of Ohio, 21 Fed. (2d) 464; Mabel Elevator Co., 2 B. T. A. 517; Mabel Elevator Co., 17 Fed. (2d) 109; Dallas Brass & Copper Co., 3 B. T. A. 856; F. A. Hall Co., 3 B. T. A. 1172; Mrs. Sidney D. Smith, 4 B. T. A. 385; Pilliod Lumber Co., 7 B. T. A. 591; reversed, 33 Fed. (2d) 245; certiorari granted, 50 Sup. Ct. 37; Abraham Werbelovsky, Executor, 8 B. T. A. 442; Paso Robles Mercantile Co., 12 B. T. A. 750; affd. 33 Fed. (2d) 653; certiorari denied, 50 Sup. Ct. 40; Estate of F. M. Stearns, 16 B. T. A. 889; Florsheim Brothers Dry Goods Co., Ltd., 29 Fed. (2d) 895; certiorari granted, 50 Sup. Ct. 17; Thomas v. United States, 22 Fed. (2d) 1000. So far as we know, it has never been held that a withholding return was such a return as would relieve the recipient of the income from penalty for failure to file a return. This petitioner should have filed a return in accordance with section 239(a) and should have stated specifically the items of its gross income and the deductions and credits allowed it for a proper fiscal period in accord-[27]*27anee with its books. The returns filed did not purport to give this information and were for a different purpose. Cf. Union Pacific Railway Co. v. Bowers, 83 Fed. (2d) 102. The only information given therein was the name of the recipient, its address, the amount of income paid to it by this single withholding agent for the calendar year, and the amount of tax so withheld. It will be noted that these returns were for calendar years, whereas the Commissioner has assessed the tax on the basis of fiscal years ending October 31. The record gives no explanation of this difference in the taxable period and we have not been told the method used in keeping the books of the petitioner or the books of the “ syndicate.”
The petitioner also contends that the deficiency asserted in the letter dated January 12, 1927, for the year ended October 31, 1921, is barred by the relevant statute of limitations because the return filed by Edward and John Burke, Ltd., in accordance with section 237 was sufficient to start the running of the period of limitation provided in section 250(d).
Free access — add to your briefcase to read the full text and ask questions with AI
[22]*22opinioít.
Murdock:
A correct decision of this case depends upon a proper interpretation of a number of different provisions of the Revenue Act of 1921. For convenience the pertinent parts of this Act have been set forth by footnote in the order in which they appear in the Act.1
Obviously, Congress intended section 237 to apply only to the case of a foreign corporation which received taxable net income from [23]*23sources within the United States but which had not engaged in trade or business within the United States and had no office or place of business therein, and not to foreign corporations which had taxable net income from sources within the United States and were engaged in trade or business therein or had an office or place of business therein. The petitioner contends that it neither engaged in trade or business within the United States nor had any office or place of business therein. We disagree with this contention. By the agreement of November 27, 1917, it was a member of a so-called “ syndicate ” which had an office and place of business in this country and which engaged in a trade or business in this country. No contention is made that this “ syndicate ” was a separate independent taxable or legal entity. According to the intent stated in the agreement, the petitioner and Edward and John Burke, Ltd., were to engage in a joint venture for the purpose of carrying on the business of manufacturing ginger ale and some other products in the United States. Whether it was a joint venture or a partnership, the business of the “ syndicate ” was as much a business of the petitioner as it was a [24]*24business of Edward and John Burke, Ltd., and the place of business of the “ syndicate ” was likewise a place of business of the petitioner. The petitioner was not receiving interest, rent, salary, wages, premiums, annuities, compensations, remunerations, emoluments or other fixed or determinable annual or periodical gains, profits and income over which Edward and John Burke, Ltd., had control, receipt, custody, disposal or payment within the meaning of section 221, but, on the contrary, was itself engaged in business in the United States, was using and protecting its secret formulae, dividing the profits of that business, retaining some control over and such rights in the management of that business as it desired, retaining also an undivided one-half interest in certain property used in and contributing to the efficient conduct of the business, and was entitled to its share of the profits of the business as such, not as something to be received from or through Edward and John Burke, Ltd. The mere fact that it adopted the particular form of conducting this business provided in the agreement, whereby its powers of control and administration were somewhat restricted, does not change the fact that it was engaged in the business. In the eye of the law at least it was present here as a party to the conduct of the business of the “ syndicate ” through which it established a place of business within the United States for doing a part of its business. Cf. People v. Roberts, 152 N. Y. 59; 46 N. E. 161. See also Flint v. Stone Tracy Co., 220 [25]*25U. S. 107, at page 171, where the court defined business and stated that corporations organized for the purpose of doing business and actually engaged in such activities as leasing property, making investments of profits, dividing profits' and in some cases investing the surplus are engaged in business.
Therefore, section 237 of the Revenue Act of 1921 does not apply to this petitioner and the Commissioner did not err in so holding or in holding that the petitioner was liable for income and profits taxes in accordance with other provisions of the Revenue Act of 1921. This we believe is a complete decision of the issue raised by the petitioner’s first allegation of error, which does not require us to go into the method used by the Commissioner in determining the deficiencies which he has determined.
The next issue is as to whether or not the Commissioner erred in assessing the penalties upon the petitioner for failure to file a return for each of the two taxable periods here involved. Ro question is raised as to the amount of the penalties, if any penalties were proper. The penalties in this case were apparently imposed under section 1311 for failure to file a return. The petitioner contends that since the two returns above mentioned were filed by Edward and John Burke, Ltd., as withholding agent in accordance with section 237, no penalty can be assessed against it for failure to file returns. It argues that it was not required at its peril to decide upon the exact form of its return. The courts and this [26]*26Board have heretofore held in certain instances that a taxpayer who did not file a return on the correct form or whose return was not correct in every detail, had not necessarily failed to file a sufficient return, but in every case of this kind that has been called to our attention, there was a return filed which gave the Commissioner substantial information as to the specific items of the taxpayer’s gross income and the deductions and credits to which it was entitled. Cf. National Refining Co. of Ohio, 1 B. T. A. 236; National Refining Co. of Ohio, 21 Fed. (2d) 464; Mabel Elevator Co., 2 B. T. A. 517; Mabel Elevator Co., 17 Fed. (2d) 109; Dallas Brass & Copper Co., 3 B. T. A. 856; F. A. Hall Co., 3 B. T. A. 1172; Mrs. Sidney D. Smith, 4 B. T. A. 385; Pilliod Lumber Co., 7 B. T. A. 591; reversed, 33 Fed. (2d) 245; certiorari granted, 50 Sup. Ct. 37; Abraham Werbelovsky, Executor, 8 B. T. A. 442; Paso Robles Mercantile Co., 12 B. T. A. 750; affd. 33 Fed. (2d) 653; certiorari denied, 50 Sup. Ct. 40; Estate of F. M. Stearns, 16 B. T. A. 889; Florsheim Brothers Dry Goods Co., Ltd., 29 Fed. (2d) 895; certiorari granted, 50 Sup. Ct. 17; Thomas v. United States, 22 Fed. (2d) 1000. So far as we know, it has never been held that a withholding return was such a return as would relieve the recipient of the income from penalty for failure to file a return. This petitioner should have filed a return in accordance with section 239(a) and should have stated specifically the items of its gross income and the deductions and credits allowed it for a proper fiscal period in accord-[27]*27anee with its books. The returns filed did not purport to give this information and were for a different purpose. Cf. Union Pacific Railway Co. v. Bowers, 83 Fed. (2d) 102. The only information given therein was the name of the recipient, its address, the amount of income paid to it by this single withholding agent for the calendar year, and the amount of tax so withheld. It will be noted that these returns were for calendar years, whereas the Commissioner has assessed the tax on the basis of fiscal years ending October 31. The record gives no explanation of this difference in the taxable period and we have not been told the method used in keeping the books of the petitioner or the books of the “ syndicate.”
The petitioner also contends that the deficiency asserted in the letter dated January 12, 1927, for the year ended October 31, 1921, is barred by the relevant statute of limitations because the return filed by Edward and John Burke, Ltd., in accordance with section 237 was sufficient to start the running of the period of limitation provided in section 250(d). Subsequent revenue acts have made no change in the provisions of section 250(d), material hereto, except that in the later acts the expression “ failure to file a required return ” was changed to “ failure to file a return.”
In order that the scope and effect of the Revenue Act of 1921 might be as general as possible, Congress made section 230 apply to every corporation which had net income in excess of certain credits provided in section 286. Likewise, in section 239(a) it required every corporation subject to taxation under Title I of the Act to file a return stating specifically the items of its gross income and the deductions and credits allowed by this title. This was quite a different return from that of the withholding agent required in section 221. Of course this Act did not require the filing of a return and [28]*28the payment of a tax to the United States Government by every corporation in the world having net income in excess of the credits allowed in section 236. But this is only true because other provisions of the Act limit its scope and effect. For example, section 233(b), as supplemented by section 217, eliminated all foreign corporations which did not have gross income from sources within the United States determined in the manner provided in section 217. But this section does not apply in the case of this petitioner, for it is not contended that the petitioner did not have gross income from sources within the United States determined in the manner provided in section 217, and it is clear that the petitioner had some gross income of this kind. Furthermore, there is no other provision of the Revenue Act which would remove this petitioner from the general classification of corporations affected by section 230. Thus, the petitioner, being subject to taxation under Title I, was required by section 239 (a) to make a return stating specifically the items of its gross income and the deductions and credits allowed by this title. This it was required to do regardless of whether or not some other individual, corporation, or partnership was required to file a withholding return and pay certain tax for it, as a withholding agent, under sections 237 and 221. Section 221, in subparagraphs (d) and (e), provides a method to prevent double taxation in this connection, but it is apparent from these paragraphs that the recipient of the income was required to file a return also.
It may well be that certain foreign corporations subject to tax were in position to decline to file a return separate and apart from the withholding return, but the fact remains that all were required to file a return under section 239 (a), regardless of whether or not another -was required under section 237 and section 221. Any corporation which failed to file a return under section 239 (a) did so at its peril, inasmuch as by such failure it may have denied itself certain benefits which it would have received had it filed the return. That is the position of the present petitioner. It failed to file a return [29]*29under section 239 (a) and now seeks certain benefits which the filing of that return would have given it. To be specific, it seeks the benefit of the statutory period of limitation within which the Commissioner must determine and assess the tax, and it also seeks to avoid the penalty which the Commissioner has imposed for failure to file a return. It is clear, however, that under section 2oO (d) the tax due may be determined, assessed and collected at any time after it became due because the petitioner failed to file a required return. Likewise, since no return was filed, the Commissioner was not in error in imposing the penalty for failure to file a return.
This view not only finds support in the revenue act itself, but also finds support in common sense and reason. Suppose that the petitioner had received other income from five other sources within the United States in addition to the income here in question, and that, instead of one withholding return six had been filed by six different corporations at six different times, each stating that certain income had been paid to the petitioner for the year and that certain tax had been withheld on that account. In this situation, if the petitioner’s contention were correct, when would the period of limitation begin to run? Furthermore, if the petitioner’s contention were correct, it would apply equally well to returns made under section 221, and thus where any tax was withheld at the source, as the 2 per cent on bond interest, the statute of limitations would immediately begin to run in connection with the entire income-tax liability of the individual or partnership recipent of the interest, even though the individual or partnership failed to file any return as required by the Act, and no penalty could be imposed for failure to file a return.
Reviewed by the Board.
Judgment will be entered for the respondent.